German court decision: Technicalities prolong eyeo’s battle for user rights and the open web

We are convinced that no company should prohibit users from determining their own browser settings, force them to download content or accept tracking. The recent decision by the German Federal Court of Justice points to further legal battles. We remain committed to protecting user freedom and will continue to defend digital self-determination.

eyeo was founded almost one and a half decades ago and since day one, we have been fighting for users and the open web: by developing products that millions of users love, but also by defending user rights in court. In our current legal dispute, brought against us by publisher Axel Springer, the German Federal Court of Justice (BGH) recently sent the case back to the appellate court for a new hearing and decision. 

Let’s recap what happened and why it matters, not only for ad blockers but for the open web.

Copyright allegations
Axel Springer alleges that browser-based ad filtering constitutes a copyright infringement, arguing that the HTML source code of a webpage dictates the browser how to render a website and all subsequent actions and data that are created or downloaded by the browser during that process are part of a big “website program”. As a result, websites would basically be cloud-based applications that should have copyright protection as computer programs and changing how websites are rendered would be a copyright violation. This implies that millions of users that improve their online experience every day - for example, by blocking invasive trackers, changing font sizes for readability, or controlling what their kids see online - would infringe copyright and are subject to the good will of publishers like Axel Springer. 

Users rights 
We strongly disagree with this argument and side with the users. So did the lower courts: the Hamburg Regional Court dismissed the case, ruling that Axel Springer's claim would make common browser functions, such as the ability to disable JavaScript or block pop-ups, dependent on the website owner’s consent. The Higher Regional Court of Hamburg also rejected the appeal, stating that the claims would disproportionately interfere with the user's freedom and that no copyright is violated. 

The reason that the BGH sent the case back to the Higher Regional Court of Hamburg is that the appeal judgment was not clear enough in its reasoning. In order to make sure the dismissing judgment is fully transparent, it should comment even more on the technical aspects of the case to make it absolutely clear that nothing that happens when a website is rendered in a browser has the quality of a protected computer program. The Court was also instructed to determine several key points: whether Axel Springer actually owns the website data (given that much of it, like many ad scripts, is open source or belongs to entities such as Google); if a user's private rendering of the website constitutes justified intended use; and ultimately, if the developer of the extension or browser is liable for its use by a potentially copyright-infringing user.

It's about the free web
Two things are clear for us: first, it is obvious that this case is not just a legal dispute between two companies. It also has nothing to do with the business model of ad-blocking providers. This case is about the fundamental rights of users to use the web freely, and to view it in an accessible manner, based on their needs. Daniel Nazer, Senior IP & Product Counsel at Mozilla, said that this case not only affects ad blocking, but “threatens the broader principle of user choice online” and puts user freedom, privacy, and security at risk. 

Andrey Meshkov, CTO and Co-Founder at AdGuard, said: "This case is nothing less than a threat to the very Internet we know today. I could go on forever listing the everyday things that are now at risk, but let me start with the most basic one: even choosing a browser could become a problem. If you follow the letter of this lawsuit, there’s only one “correct” way to display a publisher’s content — and if someone dares to render it differently from what the publisher demands, they’re instantly at fault. To me, that feels like putting the cart before the horse. As an engineer, I want to point out something else: what they’re asking for is simply technically impossible. Even if publishers were to release all their content as static images, those images would still render slightly differently across browsers. The only foolproof way to achieve what they want would be to go back to print. Although even then, it seems they might try to forbid us from folding the newspaper or flipping through the pages — and then demand we call in and report after reading every article."

Second, we will continue what we’ve done before: fight for the rights of users to access the internet freely and on their own terms.